Citation Nr: 1017346
Decision Date: 05/11/10 Archive Date: 05/26/10
DOCKET NO. 07-29 696 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for Alzheimer's
disease.
2. Entitlement to service connection for Alzheimer's
disease.
REPRESENTATION
Veteran represented by: Kathy A. Lieberman, Attorney
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The Veteran served on active duty from March 1943 to December
1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2006 rating decision, in which
the RO determined new and material evidence had been received
to reopen the Veteran's previously-denied claim for service
connection and reopened and denied his claim.
While this claim was reopened and adjudicated on a de novo
basis by the RO, the Board notes that the claim was
previously denied in a January 2005 Board decision, which is
final under 38 U.S.C.A. § 7104(c) (West 2002). The Board
therefore has a legal duty to address the "new and material
evidence" requirement of 38 C.F.R. § 3.156 regardless of the
actions of the RO and has recharacterized the issue
accordingly. Barnett v. Brown, 8 Vet. App. 1, 4 (1995),
aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v.
Brown, 4 Vet. App. 239, 244 (1993).
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Veteran's reopened claim is addressed in the REMAND
section of this decision and is REMANDED to the RO for
further development.
FINDINGS OF FACT
1. In an unappealed January 2005 decision, the Board denied
the Veteran's initial claim for service connection for
Alzheimer's disease.
2. Evidence received since the January 2005 Board decision
is new and pertains to the question of a causal link between
the Veteran's current Alzheimer's disease and service.
CONCLUSIONS OF LAW
1. The January 2005 Board decision, denying service
connection for Alzheimer's disease, is final. 38 U.S.C.A. §
7104 (West 2002); 38 C.F.R. § 20.1100 (2005).
2. New and material evidence has been received to reopen a
claim for service connection for Alzheimer's disease.
38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.156, 3.159 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminarily, the Board notes that the claim on appeal is
being reopened and is subject to additional development on
remand, as described below. Accordingly, the Board will not
address whether VA has fulfilled its notification and
assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); and 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), as further
action is being requested in this case.
Generally, a final rating decision or Board decision may not
be reopened and allowed, and a claim based on the same
factual basis may not be considered. 38 U.S.C.A. §§ 7104,
7105 (West 2002). Under 38 U.S.C.A. § 5108, however, "[i]f
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim."
Under 38 C.F.R. § 3.156(a), the revised provisions of which
are effective in this case because the Veteran's claim was
received subsequent to August 29, 2001, "new and material
evidence" means evidence not previously submitted to agency
decisionmakers which, by itself or in connection with
evidence previously included in the record, "relates to an
unestablished fact necessary to substantiate the claim." New
and material evidence can be "neither cumulative nor
redundant" of the evidence of record at the time of the last
prior final denial of the claim and must also "raise a
reasonable possibility of substantiating the claim."
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
In this case, the Veteran's initial claim for service
connection for Alzheimer's disease was denied in a November
2002 rating decision on the basis that the Veteran's
disability had not been shown to be etiologically related to
service. The Veteran appealed this denial, but the denial
was upheld on the same basis in a January 2005 Board
decision. As the Veteran did not appeal the Board's
decision, it is final under 38 U.S.C.A. § 7104(a), and the
question for the Board now is whether new and material
evidence has been received by VA in support of the Veteran's
claim since the issuance of that decision.
In this regard, the claims file now contains an October 2005
medical statement from B. M. P., M.D., which indicates a
"significant possibility" that the onset of the Veteran's
dementia was related to service. The Board finds that this
statement relates to the question of a link between current
Alzheimer's disease and service and raises a reasonable
possibility of substantiating the claim. As such, it
constitutes new and material evidence, and the claim for
service connection for Alzheimer's disease is reopened.
ORDER
As new and material evidence has been received to reopen a
claim for service connection for Alzheimer's disease; to this
limited extent, the appeal is granted.
REMAND
In view of the Board's decision to reopen the Veteran's claim
for service connection, the VA should consider the claim on
the merits, in the first instance, to avoid any prejudice to
the appellant. The Board also finds that additional
development, as described in greater detail below, is needed
and a remand is required. No final determination on this
claim will be made at the present time.
As currently constituted, the Veteran's claims file contains
records of treatment for Alzheimer's disease dating back to
February 2002. In the aforementioned October 2005 statement,
however, Dr. B. M. P. noted that the Veteran was diagnosed
with Alzheimer's dementia by a psychiatrist at Tucker
Pavilion at Chippenham Hospital in Richmond, Virginia in July
1997 and has since been treated for the "progressive
course" of this disease. Records corresponding to this
initial treatment and diagnosis have not been requested to
date, however, and may prove relevant to the Veteran's
service connection claim. As such, on remand, efforts to
obtain these records should be made. 38 C.F.R.
§ 3.159(c)(1).
In addition, the Board notes that Veteran claims he sustained
a head injury as a result of an airplane crash on August 10,
1944, furnishing a copy of a note from a commanding officer
that stated that the Veteran had lost his identification in
that crash. Unlike an October 20, 1944 airplane crash, there
are no service treatment records reflecting that the Veteran
sustained any injuries as a result of an August 1944 airplane
crash. Given this history, additional efforts should be made
to determine whether the Veteran was, in fact, in an airplane
crash in August 1944, by obtaining a copy of the Veteran's
Official Military Personnel File (OMPF).
Accordingly, this case is REMANDED for the following action:
1. Contact the National Personnel
Records Center (NPRC), the Department of
the Navy - Naval Historical Center (NHC),
and the National Archives and Records
Administration (NARA), if necessary, to
ascertain whether any additional service
personnel records exist, including a
complete copy of the Veteran's OMPF, to
corroborate the Veteran's claim of being
in an airplane crash on April 10, 1944.
In contacting any records custodian, the
NPRC, service department, NHC, or NARA,
submit copies of the Veteran's Notice of
Separation from U.S. Naval Service and
any other pertinent information, for
consideration. Copies of all responses
and materials obtained should be
associated with the claims file. If such
records are not available, or the search
for any such records otherwise yields
negative results, that fact should
clearly be documented in the claims file.
2. After securing a signed release form,
with full address information, all
records of evaluation and treatment for
the Veteran from Tucker Pavilion at
Chippenham Hospital in Richmond, Virginia
must be requested. All records and
responses received should be associated
with the claims file. If any records
sought are not obtained, notify the
Veteran and his attorney of the records
that were not obtained, explain the
efforts taken to obtain them, and
describe further action to be taken.
3. After completing the above requested
actions, and any additional notification
and/or development deemed warranted,
readjudicate the Veteran's claim for
service connection. If any determination
remains adverse to the Veteran, furnish
him and his attorney a supplemental
statement of the case and afford them the
appropriate time period for response
before the claims file is returned to the
Board for further appellate
consideration.
The Veteran has the right to submit additional evidence and
argument on this matter. Kutscherousky v. West, 12 Vet. App.
369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
____________________________________________
M. R. VAVRINA
ActingVeterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs